September 19, 2013 (US phone companies never challenged NSA data requests)
BENTON'S COMMUNICATIONS-RELATED HEADLINES for THURSDAY, SEPTEMBER 19, 2013
OSTP Nomination Hearing http://benton.org/calendar/2013-09-19/
GOVERNMENT & COMMUNICATIONS
US phone companies never once challenged NSA data requests
Cellphone-Wiretap Ruling Is a Headache for Prosecutors
The Internet began as a government project. So why has government fallen so far behind? [links to web]
JOURNALISM
What liberal mainstream media? - analysis
Majority of climate change news stories focus on uncertainty, study finds [links to web]
INTERNET/BROADBAND
House Judiciary Committee Releases Principles on Internet Sales Tax - press release
Verizon's Plan to Break the Internet -- op-ed
Open Internet 3.0? - analysis
Verizon, Caught Red-Handed op-ed [links to web]
How the core of the Internet has changed from data to content
US Official Warns on Threat to Banks From Cyberattacks [links to web]
CONTENT
Court: Facebook ‘Like’ Is Protected By the First Amendment
How the core of the Internet has changed from data to content
MPAA: Google Gets a Failing Grade for Anti-Piracy Efforts [links to web]
Pandora Wins Licensing Ruling Against Songwriters
Michelle Obama pushes for ads for healthful foods for kids [links to web]
PRIVACY
Privacy advocate, Adobe director to lead Do Not Track talks
NIST Awards Grants to Improve Online Security and Privacy - press release [links to web]
How Google Will Track You Without Cookies [links to web]
Facebook users are committing 'virtual identity suicide' in droves and quitting the site over privacy and addiction fears [links to web]
EDUCATION
NCTA, ACA Rate FCC E-Rate Proposal
The Next Step on the Path to an Online-Only Education? [links to web]
TELEVISION/RADIO
Court Sides With Dish Over ABC in DVR Fight
How ‘Cord Never’ Generation Poses Sales Drag for Pay TV
DOJ Clears the Air on E-Cigarette Ads [links to web]
Nielsen: Most Video Streamers Are Binge Viewers [links to web]
Stations Need to Work Harder for Political [links to web]
LOBBYING
What Can Washington Do for Mark Zuckerberg?
POLICYMAKERS
O'Rielly, McSweeny Face Senate Commerce Committee - analysis
CPB Board Re-Elects Cahill as Board Chair and Sembler as Vice Chair - press release [links to web]
Privacy advocate, Adobe director to lead Do Not Track talks
MORE ONLINE
China-based hacking group behind hundreds of attacks on US companies [links to web]
GOVERNMENT & COMMUNICATIONS
US PHONE COMPANIES NEVER ONCE CHALLENGED NSA DATA REQUESTS
[SOURCE: Washington Post, AUTHOR: Brian Fung]
None of the phone companies that handed over communications metadata in bulk to the National Security Agency ever challenged the agency on its data requests, a newly declassified government document shows. In a formerly secret memo published by the Foreign Intelligence Surveillance Court — the judicial body responsible for approving the NSA's surveillance — Judge Claire Eagen reveals that "to date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order ... despite the explicit statutory mechanism for doing so." Section 215 of the Patriot Act has been interpreted by the NSA to authorize the blanket seizure of millions of US phone records. The law allows court orders issued under Section 215 to be contested if the recipient can prove that the data request is unreasonably broad. Telecommunications company acquiescence to the bulk phone records collection orders also contrasts with the protestations of some Internet companies regarding their relationship with the NSA. benton.org/node/160406 | Washington Post | The Guardian | Politico
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CELLPHONE WIRETAP RULING
[SOURCE: Wall Street Journal, AUTHOR: Joe Palazzolo]
The mobility of cellphones is the very thing that is complicating law enforcement's ability to wiretap them in criminal investigations. A recent ruling by the Fifth U.S. Circuit Court of Appeals in New Orleans said that while cellphones may move easily between the country's 94 federal districts, the authority to tap them doesn't. The ruling affects the wiretaps typically used in criminal investigations, especially by the Drug Enforcement Administration, which is part of the Justice Department. Former law-enforcement officials said the Aug. 26 opinion is among the most significant in recent memory governing the use of such wiretaps and could pose administrative headaches for law-enforcement agencies, unless Congress stepped in, which most regard as unlikely. The appeals court said that for the federal government to intercept calls on a cellphone, either the phone itself or the hub where agents listen in on the calls must be in the district of the judge who authorized the wiretap.
benton.org/node/160416 | Wall Street Journal
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JOURNALISM
WHAT LIBERAL MEDIA?
[SOURCE: Politico, AUTHOR: Dylan Byers]
[Commentary] Fox News is the No. 1 cable news channel in the country. The Wall Street Journal, which is owned by Rupert Murdoch, is the No. 1-selling newspaper in the country. Rush Limbaugh is the No. 1 most listened to talk radio host in the country and Drudge Report, the conservative online news aggregator, is the No. 1 traffic driver for political news sites. So, let's cycle back through that: The dominant players across all news platforms are Fox News (by viewers), The Wall Street Journal (by circulation); Rush Limbaugh (by listeners); and Drudge Report (by traffic). So, when conservatives slam the "liberal mainstream media" -- what the hell are they talking about? I've put this question to conservative media figures over recent months, and the answer is usually the same: Yes, conservative outlets hold the top spots, but they're competing with an entire liberal media infrastructure that includes ABC News, NBC News, CBS News, CNN, MSNBC, NPR, The New York Times, The Washington Post, The Huffington Post, the liberal blogosphere, and so on and so forth. But how big is the "liberal" infrastructure, really? Fox News often outperforms CNN and MSNBC combined. The broadcast networks air actual news programming for roughly one hour a day, cumulatively, and again for an hour on Sunday mornings. No one on talk radio comes close to Limbaugh or to Sean Hannity, who occupies the number-two spot. The Huffington Post doesn't hold a candle to the Drudge Report in terms of influence or outbound traffic*. But, ok, perhaps there is a point to be made on the cumulative influence of the Times, the Post and other papers when compared to the Journal. Overall, however, we're a long way from the days when Roger Ailes, the founder of Fox News, could claim there was no voice for conservatives in the mainstream media.
benton.org/node/160404 | Politico
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INTERNET/BROADBAND
HOUSE JUDICIARY COMMITTEE RELEASES PRINCIPLES ON INTERNET SALES TAX
[SOURCE: House Committee on the Judiciary, AUTHOR: Press Release]
The House Judiciary Committee released basic principles pertaining to the issue of Internet sales tax. To develop these principles, the Committee received input directly from taxpayers, industry and trade groups, and representatives of state and local governments. The principles are intended to guide discussion on this issue and spark creative solutions.
Tax Relief – Using the Internet should not create new or discriminatory taxes not faced in the offline world. Nor should any fresh precedent be created for other areas of interstate taxation by States.
Tech Neutrality – Brick & Mortar, Exclusively Online, and Brick & Click businesses should all be on equal footing. The sales tax compliance burden on online Internet sellers should not be less, but neither should it be greater than that on similarly situated offline businesses.
No Regulation Without Representation – Those who would bear state taxation, regulation and compliance burdens should have direct recourse to protest unfair, unwise or discriminatory rates and enforcement.
Simplicity – Governments should not stifle businesses by shifting onerous compliance requirements onto them; laws should be so simple and compliance so inexpensive and reliable as to render a small business exemption unnecessary.
Tax Competition – Governments should be encouraged to compete with one another to keep tax rates low and American businesses should not be disadvantaged vis-a-vis their foreign competitors.
States' Rights – States should be sovereign within their physical boundaries. In addition, the federal government should not mandate that States impose any sales tax compliance burdens.
Privacy Rights – Sensitive customer data must be protected.
benton.org/node/160389 | House Committee on the Judiciary
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VERIZON'S PLAN TO BREAK THE INTERNET
[SOURCE: Huffington Post, AUTHOR: Timothy Karr]
[Commentary] Verizon has big plans for the Internet. And if that doesn't worry you, it should. The company is trying to overturn the Federal Communications Commission's Open Internet Order, which prevents Internet service providers from blocking, throttling or otherwise discriminating against online content. And in court, Verizon lawyer Helgi Walker made the company's intentions all too clear, saying the company wants to prioritize those websites and services that are willing to shell out for better access. She also admitted that the company would like to block online content from those companies or individuals that don't pay Verizon's tolls. This approach would undermine network neutrality, the principle that allows us to connect and communicate online without interference. World Wide Web inventor Sir Tim Berners-Lee’s open protocol approach has given us a truly free marketplace of ideas where even the smallest entrepreneur can compete with giant corporations. Without the inherent protections an open Internet offers political voices who lack a big-money megaphone will get drowned out. [Timothy Karr is Campaign Director, Free Press and SavetheInternet.com]
benton.org/node/160370 | Huffington Post
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OPEN INTERNET 3.0?
[SOURCE: American Enterprise Institute, AUTHOR: Babette Boliek]
[Commentary] The DC Circuit heard oral argument challenging the validity of the Federal Communication Commission’s second iteration of its Open Internet rules. Most observers agree that Open Internet Order 2.0 will go the way of the first version seen in Comcast: judicial invalidation for lack of regulatory jurisdiction. But if the expected defeat comes to pass, will the FCC fade away or, like the Terminator, rise up and attempt Open Internet 3.0? Maybe the best way to understand an Open Internet 3.0 would be as an FCC power grab with its jurisdiction shored up by: (1) reclassifying all ISP services as “common carrier” or Title II services; or (2) exploiting the flexible jurisdiction the FCC enjoys under its merger approval and spectrum licensing authority. The solution to the continuing attempts to impose Open Internet rules is to limit the FCC’s discretion to classify new services as common carrier services. This can be done by instituting a legislative presumption that new services are to be lightly regulated unless rebutted by legislatively determined evidentiary criteria. It is unnecessary to remove the FCC’s merger and licensing powers entirely; rather, Congress should extend the Comcast standard to limit FCC merger and licensing demands to only those necessary for the agency to fulfill its statutory mandate. Without such jurisdictional discipline, the FCC may circumvent congressional intent by opportunistic use of its legitimate authority.
benton.org/node/160366 | American Enterprise Institute
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CONTENT
COURT: FACEBOOK ‘LIKE’ IS PROTECTED BY THE FIRST AMENDMENT
[SOURCE: Wall Street Journal, AUTHOR: Joe Palazzolo]
“Liking” something on Facebook is a form of speech protected by the First Amendment, a federal appeals court ruled, reviving a closely watched case over the extent to which the Constitution shields what we do online. In doing so, the Fourth US Circuit Court of Appeals sided with a former deputy sheriff in Hampton (VA) who said he was sacked for “liking” the Facebook page of a man running against his boss for city sheriff. “Liking” the campaign page, the court said, was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.” The Richmond-based appeals court reversed a ruling by a federal district judge, Raymond A. Jackson, who threw out the lawsuit last year on the grounds that a Facebook “like” was “insufficient speech to merit constitutional protection.”
benton.org/node/160391 | Wall Street Journal | LA Times | WashPost
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HOW THE CORE OF THE INTERNET HAS CHANGED FROM DATA TO CONTENT
[SOURCE: GigaOm, AUTHOR: Kevin Tofel]
A fundamental shift from data to content has actually changed the infrastructure of the Internet -- and the change isn’t over yet. That’s the view of Craig Labovitz, cofounder of DeepField. And if anyone should know about the “plumbing” of the Internet’s core, it’s Labovitz; he’s studied it for more than 15 years. Through 2008, Labovitz says, the “core” of the Internet meant 10 to 15 companies handling the long haul backbones. They incurred most of the cost for the core at that time, but provided most of the value and delivered the majority of Internet data. That started to change in 2006, however, thanks to an explosion of content. “By 2010 Google went from 1 percent of traffic to 6 percent due to the YouTube purchase,” he noted, requiring changes to the core: Content shifted to data centers, which required massive investments. In 2009, about 150 companies accounted for 50 percent or more of Internet traffic. By 2013, just 50 companies deliver more than half of all Internet traffic, and they do so using a smaller number of data centers and Content Delivery Networks.
benton.org/node/160372 | GigaOm
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PANDORA WINS LICENSING RULING AGAINST SONGWRITERS
[SOURCE: Bloomberg, AUTHOR: Don Jeffrey]
Pandora Media, the biggest Internet radio service, won a court order to stop a group representing songwriters and music publishers from limiting the number of songs that it licenses to Pandora. US District Judge Denise Cote in Manhattan said in a ruling that Pandora’s five-year license beginning Jan 1, 2011, won’t be affected by withdrawals of new-media licensing rights from the repertory of the American Society of Composers, Authors and Publishers. Judge Cote granted Pandora’s request for summary judgment, citing an earlier consent decree between Ascap and the US. “The language of the consent decree unambiguously requires Ascap to provide Pandora with a license to perform all of the works in its repertory,” Judge Cote said in the ruling.
benton.org/node/160374 | Bloomberg
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PRIVACY
PRIVACY ADVOCATE, ADOBE DIRECTOR TO LEAD DO NOT TRACK TALKS
[SOURCE: The Hill, AUTHOR: Kate Tummarello]
A privacy advocate and a director at Adobe will take over the contentious and stalled Do Not Track talks at the World Wide Web Consortium (W3C), the group's stakeholders were told during a weekly conference call. Adobe’s Carl Cargill and Justin Brookman, from the Center for Democracy and Technology (CDT), join Intel’s Matthias Schunter as co-chairs of the stakeholder group. Cargill is Adobe’s standards principal, while Brookman leads the CDT’s Project on Consumer Privacy. Carill and Brookman replace outgoing co-chair Peter Swire, who was selected for the White House’s surveillance review panel last month. Prior to Swire, the group was led by Stanford University’s Aleecia McDonald.
benton.org/node/160387 | Hill, The
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EDUCATION
NCTA, ACA RATE FCC E-RATE PROPOSAL
[SOURCE: Broadcasting&Cable, AUTHOR: John Eggerton]
The Federal Communications Commission has gotten plenty of input from the cable industry on its proposed reform/modernization of the E-rate program, which provides subsidies to schools and libraries for advanced telecommunications. The FCC has proposed some high-speed targets, but the National Cable & Telecommunications Association (NCTA) says that a "one-size-fits-all" approach may not be the best, and could lead to insufficient funds for other important elements like teacher training and devices. NCTA points out that schools are already able to purchase service at the target speeds. "There is nothing in the current E-rate rules that prohibits schools from soliciting bids for connectivity at 100 Mbps, 1Gbps, or more," said the association. "Rather than encouraging or mandating that schools purchase particular levels of bandwidth, the Commission should focus its efforts on creating an environment where schools are more likely to solicit bids for those high-capacity services and more likely to have the resources to deliver faster speeds to students in the classroom." NCTA says the FCC should remove the current distinction between connections to the schools and libraries (priority one) and internal connections (priority two), which it says often go unfunded. That is where more Wi-Fi could help, it says.
In its comments, the American Cable Association said that before the FCC does anything, it needs to gather more data, including on "existing infrastructure, broadband dependent applications and services (and their performance requirements) used today by teachers and students and those that are likely to be used, and the number and types of access devices and technologies used today and those expected to be used in the near future." ACA's key policy proposals are that the FCC should 1) use existing facilities as much as possible, requiring certification that a school or library had made "all reasonable efforts" to receive high-speed connectivity using existing facilities; 2) capping the fund at $2.25 billion; and 3) simplify and standardize the process.
benton.org/node/160385 | Broadcasting&Cable
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TELEVISION
HOW ‘CORD NEVER’ GENERATION POSES SALES DRAG FOR PAY TV
[SOURCE: Bloomberg, AUTHOR: Ian King]
Miranda Henely spends four hours in front of the television every day -- yet she doesn’t spend a dime on cable or satellite programming. Henely, 23, instead watches shows and movies streamed from Netflix, Amazon or directly from broadcasters’ websites, using a computer hooked up to the TV in her home. She’s known in industry parlance as a cord never, meaning she hasn’t ever subscribed to pay TV: channels from a cable company, such as Comcast, or a satellite provider like DirecTV, or phone companies -- and she doesn’t ever intend to. Henely is part of a generation of technology-savvy, budget-conscious consumers who are taking advantage of the availability of high-speed Internet connections and the proliferation of smartphones, tablets, lower-cost TVs and other gadgets that make it easy to consume downloadable shows in a snap. The shift in viewing habits is putting pressure on cable, satellite and phone companies by pinching subscriber numbers, which may have a knock-on effect on revenue growth. The impact on the $80 billion pay-TV industry is already being felt, with 2013 on pace to be the first year ever that total U.S. Pay-TV subscriptions will decline, falling to 100.8 million from 100.9 million last year, according to researcher IHS.
benton.org/node/160376 | Bloomberg
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ABC V. HOPPER
[SOURCE: Wall Street Journal, AUTHOR: Shalini Ramachandran]
Dish Network won a legal victory as a federal judge denied broadcaster ABC's request to shut down features of its "Hopper" digital-video recorder. The decision comes as satellite TV operator Dish is in negotiations with ABC-parent Walt Disney about renewing the companies' carriage agreement, which expires at the end of this month. ABC's concerns about the Hopper are one of several tensions between the companies and could be a factor in those talks, analysts say. Broadcasters including ABC say the Hopper infringes on their copyrights. The service has a feature that automatically records all primetime broadcast programming and another that allows users to automatically skip over ads during that programming. Normal DVRs already pose a problem for TV programmers: many viewers fast-forward through commercials, threatening to reduce the value of that ad inventory for marketers. The Hopper makes it even easier for viewers to skip ads.
benton.org/node/160414 | Wall Street Journal
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LOBBYING
WHAT CAN WASHINGTON DO FOR MARK ZUCKERBERG?
[SOURCE: The Atlantic, AUTHOR: Emma Green]
Times have changed since the Facebook CEO first visited DC in 2010--now, he has a lot more power. When Mark Zuckerberg talks with Atlantic editor in chief James Bennet in an interview at the Newseum in Washington, he’ll be speaking as a newly minted DC insider. Earlier this year, he co-founded the lobbying organization, FWD.us, dedicated to promoting “policies to keep the United States and its citizens competitive in a global economy.” So far, that has mostly meant immigration reform, although the group’s stated goals also include improving education and increasing the funding available for scientific research. The organization has retained at least two DC lobbying firms and run ad campaigns for Republican senators who needed political cover at home so they could cooperate in bipartisan immigration reform in Washington. In doing so, Zuckerberg is positioning himself as a leader on these issues, using as leverage Silicon Valley’s cash, his own celebrity, and a long list of tech notables who have backed FWD.us. He will meet with top congressional Republicans and Democrats, including House Speaker John Boehner, House Majority Leader Eric Cantor, and House Minority Leader Nancy Pelosi. The group is slated to discuss immigration reform. Prospects for passage in the House have dimmed, but Zuckerberg is clearly trying to keep the issue alive.
benton.org/node/160397 | Atlantic, The
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POLICYMAKERS
NOMINATION HEARING RECAP
[SOURCE: Benton Foundation, AUTHOR: Kevin Taglang]
The Senate Commerce Committee held a hearing to consider the nominations of Michael O'Rielly to be a new commissioner of the Federal Communications Commission and Terrell McSweeny to be a commissioner at the Federal Trade Commission. In his opening remarks Committee Chairman Jay Rockefeller (D-WV) noted O'Rielly’s 20 years of experience as a Congressional staffer. Chairman Rockefeller highlighted what he believes are the two most important proceedings before the FCC -- the voluntary incentive spectrum auction and the effort to update and strengthen the bi-partisan E-Rate program. Ranking Member John Thune (R-SD) said that both the FCC and the FTC need commissioners who “possess sound judgment so they can find the right balance between intervening in the marketplace to correct market failures and applying restraint from taking actions that could overburden industry, harm innovation and stifle economic growth.”
AdWeek’s Katy Bachman noted that the two nominees couldn’t be more different. Very simply, differences between the two can be easily summed up as hands off (O’Rielly) and hands on (McSweeny). O’Rielly looks at his upcoming role on the FCC as “an opportunity to eliminate burdensome regulation,” while McSweeny told committee members that the FTC “should proceed judiciously by using whatever tools it has to enforcing competition and protecting consumers.” The FCC’s upcoming spectrum auction in 2014 is a prime example. Coming from the Department of Justice’s antitrust division, McSweeny was significantly involved in the DOJ’s ex parte filing to the FCC that suggested the agency should develop rules to ensure that the big wireless companies don’t gobble up all the wireless spectrum at auction. The filing “was focused on flagging the competition concern and suggested the FCC should think about it,” said McSweeny. Sen Thune asked whether McSweeny or other DOJ staffers had reviewed previous FCC spectrum auctions to analyze what effect of bidding restrictions on participation and whether DOJ had found any positive correlation between the two. She said she had not done so, but that the comment was about competition "advocacy" not auction economics. "The comments focus is mainly on flagging potential impact on competitive dynamics of spectrum holdings. We do believe that spectrum is a key input in the wireless space, and the comment that the division wrote, which I was involved in drafting...was focused on flagging that competition concern and suggesting the FCC think about it in designing its mobile spectrum holdings rule." O’Rielly is opposed to the FCC setting any limits on which companies can bid. “When the [FCC] tried to micromanage, it’s problematic,” he said. “When they have done such actions, it has led to licensees flipping the licenses. I’m cautious to want to impose limits on bidding.”
Brendan Sasso notes in The Hill that Senate Democrats on the committee expressed concern that O’Rielly won't be willing to work across the aisle. Sen Mark Pryor (D-AR) asked O'Rielly to explain what he meant by ending his opening statement by declaring "stand strong for freedom" -- and whether he would be willing to work with Democrats on the FCC. O'Rielly insisted that he will work with the Democratic majority on a range of issues. "Typically communications policy is not overtly partisan," O'Rielly said. "There are a couple issues that do bleed in that space, but they're very few and far between in my experience." Chairman Rockefeller also bristled at O'Rielly's statement that he would take a "flexible and light-handed" approach to regulations. "Those are code words," Rockefeller said. But the committee chairman said he believes O'Rielly is well-qualified and that his confirmation is a "done deal."
During the hearing, O'Rielly pledged to enforce the FCC's TV indecency rules and said he believes the federal government should turn over more airwaves to the private sector. He also argued that the commission should quickly complete its review of media ownership rules.
Chairman Rockefeller said he intended to schedule votes in the committee on each nominee and would "push for quick consideration on the Senate floor." "These agencies do their strongest work for the American people when all commissioners are on board." Ranking member Thune (R-SD) said he hoped for a “full slate of commissioners by the time Congress breaks for the recess currently scheduled for mid-October.”
benton.org/node/160418 | Benton Foundation | Chairman Rockefeller | Ranking Member Thune | AdWeek | The Hill | B&C – O’Rielly | B&C – McSweeny
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